Are Holiday Decorations Making You Miserable?

Holiday Decorations should be Religion Neutral

The 2005 holiday season saw a dramatic increase in the number of fair housing complaints filed by apartment renters who claimed they were the victims of religious discrimination. Even the term itself, ìholiday season,î became a matter of contentious public debate and media scrutiny. While most complaints came from residents who objected to limitations on the number or type of Christmas decorations they were allowed to display, other residents took offense for precisely the opposite reason ñ they were unhappy because their landlords werenít imposing enough restrictions on the public display of outwardly religious decorations.

Of course this put landlords in a ñ forgive me ñ ìDamned if you do, Damned if you donítî dilemma. Landlords who restricted openly religious decorations found themselves the target of residents and even some national religious groups, while landlords who allowed residents to display overtly religious decorations found themselves accused of discrimination by residents who opposed any sort of Christmas or Hanukkah display. In either case, whether guilty of discrimination or not, fair housing complaints of this sort frequently result in substantial legal fees to say nothing of the emotional toll and disruption they cause. So whatís a landlord to do as Easter 2006 approaches? Iíll try to give you some help. But first some background.


By now it should go without saying that federal, state and local Fair Housing laws all prohibit discrimination on the basis of religion. While refusing to rent to someone because they adhere ñ or donít adhere ñ to a certain religion is an obvious form of discrimination, fair housing laws also forbid apartment owners and managers (indeed all multifamily housing providers) from making any ìnotice, statement, or advertisement that indicates a preference, limitation or discrimination based on religion.î Placing, or even allowing residents to put up their own, religious decorations in the apartmentís common areas is one way in which housing providers may violate these laws. Why? Well, for one thing, religious items or decorations in the common areas may suggest to a prospective renter that the apartment community he or she is visiting favors applicants who are, say Christian; worse still, that applicants who are NOT Christian might not be welcome. Of course, displaying religious items in the common areas may offend some residents for the same reason. Such displays may therefore create the appearance that the apartment community prefers or limits one religion over another, or even that it prefers residents who are religious over those who are not. This is important to know because atheists and agnostics are entitled to exactly the same fair housing rights as any other group.

Before discussing what we recommend for your holiday seasons, it is important that apartment owners and managers be able to distinguish between decorations that are religious and those that are secular. As you might expect, this distinction is not easy to make. In fact, itís a problem that courts have frequently struggled with. In County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086 (1989), for example, the Supreme Court was asked to consider whether Allegheny County violated the Constitution by displaying a Christmas tree, nativity scene and Hanukkah menorah on government property. The Supreme Court held that the crèche was an overtly religious symbol (which shouldnít have surprised anyone), but that the Christmas tree and Hanukkah menorah were not (which probably surprised many Christians and Jews). In making that distinction, the Supreme Court said that the nativity scene had to go, but that the Christmas tree and Hanukkah menorah could stay.

Seems simple enough, but in an earlier case decided by the Supreme Court on a vote of 5 to 4, the Court held that a nativity scene on public property did not violate the law ìwhen viewed in its proper context.î In that case, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, rehearing denied, 466 U.S. 994, 104 S.Ct. 2376 (1984), the Court found that the nativity scene was permissible because it was displayed along with a Santa Claus house, candy-striped poles, a Christmas tree, carolers, cutout figures of clowns and animals, hundreds of colored lights and a large banner that read "SEASONS GREETINGS." The upshot was that the crèche in that case was allowed to stay. Nonetheless, despite Lynch v. Donnelly, which incidentally has never been overruled, the vast majority of court cases hold to the view that Christmas trees and Hanukkah menorahs (to say nothing of Santa Claus, candy canes, Christmas tree lights and similar decorations) are not religious, in contrast to nativity scenes and crucifixes, which are. See, Gonzales v. North Township of Lake County, 4 F.3d 1412 (7th Cir. 1993) (the display of a crucifix in a public park was held to violate the Constitutionís Establishment Clause).

Some of you may now be wondering why properties owned by faith-based organizations are permitted to call themselves ìBaptist Towers,î ìBínai Bírith Homeî or ìLutheran House?î The reason is more historical than legal. First, the U.S. Department of Housing and Urban Development (HUD), the federal agency chiefly responsible for private and public sector fair housing enforcement, as well as the administration of its own subsidized housing programs, has over the years simply looked the other way when it came to the way faith-based organizations named their communities, to say nothing of looking the other way in their use of religious symbols in their advertising and on their property. On January 9, 1995, however, HUD issued a memo entitled ìGuidance Regarding Advertisements Under §804(c) of the Fair Housing Act,î which clarified the agencyís position. According to HUD, properties can use religious name and symbols in their titles or logos, as long as the property includes a disclaimer in its advertising, such as "This Home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status." As for what constitutes religious vs. secular objects, HUD said that, ìThe use of secularized terms or symbols relating to religious holidays such as Santa Claus, Easter Bunny or St. Valentine's Day images, or phrases such as "Merry Christmas", "Happy Easter", or the like does not constitute a violation of the [federal Fair Housing ] Act.î

Though this issue is far from settled, we recommend that our clients follow what can be termed ìa religiously neutral policyî when it comes to holiday decorations. Here are some points to consider:

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Remember that federal, state and local fair housing laws prohibit discrimination against applicants and residents on the basis of their religion. And that these laws apply to individuals who adhere to a particular religion or to no religion at all.

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Lobbies, hallways and other common areas of your property should be maintained in a ìreligiously neutralî state. A religiously neutral state is one that does not give the appearance that the property prefers or limits one religion over another.

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Overtly religious symbols (such as nativity scenes) should not be permitted in the common areas. Nor should religious services be conducted there.

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During the Christmas and Hanukkah seasons, however, a Christmas tree (or trees) and a Hanukkah Menorah, along with other non-religious seasonal decorations, can be displayed. Similarly, during Easter, it is perfectly fine to display Easter bunnies, baskets and colored eggs.

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While common area religious displays should be avoided, residents should be allowed, within the propertyís own house rules, to display personal religious items in their apartments and even on the outside of their apartment doors.

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Finally, remember to call your lawyer if there is any doubt about the laws or cases in your own jurisdiction.